STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

(Appeal No.464 of 2010)

                                                                   Date of Institution:24.12.2010

                                                                   Date of Decision  :03.03.2011

 M/s Krishna Auto Sales, 177-E, Industrial Area-I, Chandigarh.

……Appellant.

V e r s u s

 Ind. Swift Laboratories Ltd., SCO No.850, NAC Manimajra, Chandigarh through its authorized representative Sh. Nitin Bansal.

              ....Respondent.

BEFORE:            MRS. NEENA SANDHU, PRESIDING MEMBER.

                        S.  JAGROOP  SINGH   MAHAL, MEMBER.

Argued by:            Sh. Aftab Singh Bakshi, Advocate for the appellant.

                        Sh. Sandeep Bhardwaj, Advocate for the respondent.

PER  JAGROOP  SINGH  MAHAL, MEMBER.

                    This appeal under Section 15 of Consumer Protection Act, 1986 has been filed by the complainant against the order dated 22.11.2010 passed by learned District Consumer Disputes Redressal Forum-II, U.T., Chandigarh (hereinafter referred to as District Forum) vide which the complaint was allowed against the appellant (OP No.2) and it was directed to refund the amount of Rs.1,16,903/- being the cost of replacing the timing tooth belt kit, Rs.20,000/- as compensation for harassment and financial loss and Rs.7,000/- as costs of litigation. The order was directed to be complied with by the appellant within a period of 30 days from the receipt of copy of the order failing which it was directed to pay Rs.1,36,903/- along with interest @18% per annum w.e.f. 25.6.2009 till the date of realization.

2.                     Briefly stated the facts are that the complainant company had purchased a Skoda car from OP No.1 i.e. M/s Skoda Auto India Pvt. Ltd. on 27.7.2005 for a total price of Rs.10,95,500/-. It was averred that the said vehicle was got served from OP No.2 i.e. M/s Krishna Auto Sales, Chandigarh (authorized service station) of OP No.1 on 24.10.2008 with meter when it had covered 87,700 KMs. As per the complainant, OP No.2 changed oil filter, fuel filter, weight balance, bulb and engine oil and nothing else was noticed by the engineers of OP No.2. It is further averred that the next paid service was done by OP No.2 on 24.2.2009 at 96,605 KMs and this time, it was informed that Toothed Timing Belt needed replacement but the same was not replaced on 24.2.2009 due to its non availability with the OP. The complainant, as per the averments made in the complaint, was told to contact OP No.2 after 15 days but the same was even not available after 15 days. As per the complainant, on 31.3.2003, the vehicle suddenly stopped on the main road of Ramgarh-Mubarakpur when it was towed to the service station of OP No.2 who found that the timing toothed belt kit had gone out of order. The case of the complainant was that the belt needed replacement when the vehicle was serviced by OP No.2 on 24.10.2008 at 87,700 KMs as per the service manual and instructions contained therein. The complainant served a legal notice dated 4.4.2009 upon the OPs and then filed the present complaint alleging deficiency in service on the part of OPs in not getting the timing toothed belt kit changed at the appropriate time, when it was needed.

3.                     In its reply, while admitting the factual matrix of the case, OP No.2 pleaded that the vehicle in question was got serviced by the complainant company at 47,115 KMs on 1.6.2007 and subsequently on 19.3.2008 when it had covered 47,115 KMs. OP No.2 admitted the servicing of the vehicle by it on 24.10.2008 when it had covered 87,700 Kms but as per OP No.2, the unauthorized services done on the vehicle had resulted in lapse of warranty as per the warranty guidelines. As regards the availability of timing belt, it was pleaded by OP No.2 that as and when the same was made available to it by OP No.1, the same would be supplied to the complainant for replacement and the complainant was advised to park the vehicle at their parking place. Pleading no deficiency in service on its part, OP No.2 prayed for dismissal of the complaint.

4.                     OP No.1 adopted the reply filed by OP No.2 vide order dated 30.7.2009

5.                 The parties led evidence in support of their contentions. 

6.                 After hearing the learned counsel for the parties and perusing the record, the learned District Forum allowed the complaint qua OP No.2 only vide the impugned order dated 22.11.2010 as already mentioned in the opening para of the judgment.

7.                 OP No.2 has challenged the impugned order through this appeal.

8.                 We have heard the arguments of learned counsel for the parties and have also perused the record.

9.                 The contention of the appellant is that the vehicle was out of warranty and thereafter it had no contract with the complainant/respondent for the service of the vehicle nor were they bound to change the timing belt. According to him, the order passed by the learned District Forum cannot sustain and should be set aside. We do not find any merit in this argument.

10.               The OPs themselves have given to the complainant the service instructions for the periodical service of the vehicle. Annexure C-7 shows that the timing belt kit replacement is to be effected at 90,000 KMs. As per the Service Manual (Annexure C-8), an inspection should be carried out ever six months and toothed belt for camshaft drive is to be replaced every 90,000 KMs. It is further provided (at Page 18 of the District Forum file) that in addition, toothed belt is to be inspected at 45,000 KMs and then every 15,000 KMs. The learned counsel for the complainant then referred to Annexure C-3, which is the service record of the vehicle showing that when the vehicle was taken to the appellant’s workshop on 24.10.2008, it had covered 87,700 KMs and when it was taken on 24.2.2009 it had covered 96,605 KMs. There is a mention in this record, whether toothed belt was replaced or not and the column meant for mentioning ‘yes’ or ‘no’ is blank. Annexures C-4 and C-5, the retail invoices of the paid service issued by the OPs/appellant showing that on 24.10.2008 when the vehicle was serviced, it had covered 87,700 KM and on 24.2.2009, 96,605 KM. There is no mention in any of these invoices, if the toothed belt was inspected or replaced.

11.               The contention of the appellant that there was no agreement between the parties to inspect or replace the toothed belt and therefore, there was no deficiency in service on their part has not been accepted by the learned District Forum. Rightly so, the service manual and the instructions contained therein, which were issued to the complainant by the appellant himself is binding on them. In fact, the service manual is for the OP/appellant also that when service is effected as to what tasks they are to perform. At 45,000 KMs, they are to inspect the toothed belt and thereafter at interval of 15,000 KMs. The service charges for paid service has been fixed by the manufacturer keeping in view these tasks to be performed by the OPs/appellant and therefore, the appellant was bound to inspect and replace the toothed belt when the vehicle came to its workshop on 24.10.2008 or 24.2.2009. Needless to mention that paid service is performed by the appellant for whom the complainant has already consented or undertaken to pay the charges and therefore, it was not free of charge. It cannot be said that the OP/appellant was not bound to perform the tasks mentioned in the service manual. In fact, the details of the service to be performed by the OP/appellant is mentioned by the manufacturer in the service manual and it is their duty to perform the said tasks. In the present case, OP/appellant did not perform the task of inspecting the toothed belt or replacing it at the appropriate time. This is deficiency in service on the part of OP No.2/appellant.

12.               There is yet another deficiency in service on the part of OP/appellant. In Para No.7 and 11 of the reply, they admitted that on 24.2.2009, the timing belt was not available and the complainant was advised to park the vehicle at their parking place. When the OP/appellant sold the vehicle, it was their duty to make the spares available for their customers. The learned counsel for the appellant has explained the procedure in detail in importing the spare parts and we are sure, this procedure was already known to the OP/appellant and they should have started the same well in time before the need for spares arose. It appears the OP/appellant was more interested in selling the vehicle to the customers and did not pay attention towards the spares, which should have been available in their store as and when needed. If the whole vehicle could be imported by them, there would not have been any difficulty in importing the spares.

13.               Yet another deficiency on the part of OP/appellant was that they did not inform the complainant about the damage, which could be caused to his vehicle while plying the same without getting the toothed belt replaced. Annexure C-3 is the service record. Annexure C-4 is the retail invoice dated 24.2.2008 and Annexure C-5 is the retail invoice dated 24.2.2009. In none of these documents, a direction was given to the complainant not to drive the vehicle. Even in the subsequent service rendered on 31.3.2009 vide Annexure C-6, no such direction was given. It is, therefore, wrong assertion mentioned by the OP/appellant in Para No.7 of their reply that they had advised the complainant to park the vehicle at their parking place. They subsequently realize the damage caused to the vehicle and therefore, made out this false defense.

14.               The contention of the OP/appellant that they had asked the complainant company to park the vehicle at their parking place is itself deficiency in service. After supplying the vehicle, they were required to maintain the stock of spares but instead of supplying the spare parts, they were asking their customers to park the vehicle and not to drive the same. It was never intimated by the OP/appellant to the complainant at the time of selling the vehicle that he would be required to park the same in their parking place or that the spare parts would not be made available to them.

15.               The learned District Forum has, therefore, rightly directed the OP/appellant to pay the amount of Rs.1,16,903/-, which was spent by the complainant in the repair of the vehicle caused due to non replacement of Timing Toothed Belt Kit. The compensation amount of Rs.20,000/- is also just and proper. We, therefore, do not find any drawback in the impugned order, which is perfectly legal and valid. The present appeal has no merit and the same is accordingly dismissed with litigation costs of Rs.10,000/-.

16.               Copies of this order be sent to the parties free of charge.

3^rd March 2011.

Sd/-

[NEENA SANDHU]

PRESIDING MEMBER

Sd/-

[JAGROOP SINGH MAHAL]

MEMBER

Ad/-

STATE COMMISSION

(Appeal No.464 of 2010)

Argued by:            Sh. Aftab Singh Bakshi, Advocate for the appellant.

                        Sh. Sandeep Bhardwaj, Advocate for the respondent.

Dated the 3^rd day of March, 2011.

ORDER

                    Vide our detailed order of even date recorded separately, this appeal has been dismissed with costs of Rs.10,000/-.

(JAGROOP SINGH MAHAL)                                              (NEENA SANDHU)    

                MEMBER                                                            PRESIDING MEMBER